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FMLA Changes Supported Overall, but Some Concerns Linger
 

By Kathy Gurchiek  4/25/2008

There is little objection to most of the changes to the Family and Medical Leave Act (FMLA) that the U.S. Department of Labor (DOL) wants to make, according to a survey of compensation, benefits and HR professionals who handle their organizations’ total rewards.

In fact, they appear to welcome changes that might ease two of their administrative headaches: a lack of advance notice by employees taking leave, and difficulty in tracking FMLA-related absences. For example, 43 percent of 401 respondents spend an average of 10 to 30 minutes requesting/reviewing documentation every time FMLA leave is taken.

Top concerns swirl around FMLA-allowed intermittent leave: suspected abuse, lack of advance notice to the employer, and tracking the leave. For example, 81 percent of workers using the leave do not provide more than 24-hour notice to the employer, and more than half give notice the day of the absence or later, according to respondents.

The findings, released April 2008, are based on a February 2008 online survey of WorldatWork’s U.S. members. Members typically are at or above the manager level in compensation, benefits or HR and work in the headquarters of a large company in North America, according to the organization.

The survey was conducted shortly after the DOL released its proposed changes in a Feb. 11, 2008, edition of the Federal Register.

The FMLA, enacted in 1993, has allowed more than 60 million workers to take up to 12 weeks of unpaid leave if they are ill, need to care for a sick family member, or need time off for the birth or adoption of a child.

DOL’s proposed modifications include technical changes to reflect decisions by the U.S. Supreme Court and lower courts; expanding the law to provide military family leave; increased notice obligations for employers so employees will better understand their FMLA rights; revising the employee notice rules to minimize workplace disruptions attributable to unscheduled FMLA absences; and guidance on the regulatory definition of a “serious health condition.”

Changes They Like

A majority, WorldatWork found, strongly agree on the following proposed changes:

  • Requiring workers to notify employers in advance of taking nonemergency foreseeable leave (72 percent). More than one-third of 384 respondents said employees give notice the day of the absence but before the shift.
  • Allowing employers to require annual medical certification from employees when the condition lasts more than one year (61 percent).
  • Lengthening the requirement to send eligibility and designation notices to employees from two business days to five business days (61 percent).
  • Allowing employers to require a fitness-for-duty certificate after an employee returns from intermittent leave to jobs that could endanger themselves or others or they might be unable to perform (60 percent).
  • Allowing direct contact between the employer and the health care provider to clarify a medical certification form as long as medical privacy regulations are met (60 percent).
  • Allowing an employer to request recertification of a continuing condition at least every six months in conjunction with an absence, (54 percent).

Among other findings, cancer treatment (68 percent) was the most often cited serious health condition that qualified for intermittent FMLA leave, followed by elder care/child care issues (47 percent) and migraines and headaches, (43 percent).

Surveyed members recommend defining “nonemergency foreseeable leaves” and providing clear examples, including those that would prompt an FMLA claim to be denied. More than half (57 percent) want a stricter definition of “serious health condition” that excludes the flu, colds and similar ailments as qualifying for intermittent FMLA leave.

Military Family Leave

President Bush signed the National Defense Authorization Act in January 2008, which expanded the previous 12-week leave for a family member if another family member is called to active duty. It also provided up to 26 weeks of leave for a family member to care for a wounded soldier.

That prompted the following list of recommendations from respondents:

  • A clear definition of “next of kin” unless the definition of family member currently in use applies.
  • A clear definition of “qualifying exigency.” Employees are allowed leave for a qualifying exigency arising from the employee’s spouse, son, daughter or parent going on active duty or on impending call or order to active duty.
  • A statement from the employee, or an affidavit from the military, as preferred documentation to certify qualifying exigency.
  • A time limit on “called to active duty” leave. There’s a concern an employee whose family member is on active duty for more than a year would be entitled to a new 12-week allotment each year of that active duty.
  • Allowing employers to require a copy of “called to active duty” military orders and to reserve the right to request proof of relationship.
  • Clarifying whether leave for a covered service member entitles a worker to 26 weeks of leave in addition to 12 weeks of existing FMLA leave in the same 12 months.
  • Clarifying whether covered service member leave is a one-time allowance per service member, since some active duty-related injuries and illnesses last more than one year and in some cases for a lifetime.
  • Ability to choose the 12-month period determination method from existing regulations for “covered service member leave;” the most likely choice would be the rolling 12-month method.

The proposed modifications have prompted a flurry of hearings on Capitol Hill to hear testimony from organizations such as the Society for Human Resource Management (SHRM) that had a member testify April 10, 2008, before a House subcommittee.

HR News reported at the time that the lack of more frequent doctor re-certification of employee illnesses, the definition of “serious health condition” and abuses of incremental leave are issues of critical importance to SHRM and others.

SHRM, which chairs the National Coalition to Protect Family Leave, submitted comprehensive comments to the DOL about the proposed changes after hearing from its members at sessions held in each of its member regions.

Among its comments, SHRM called for clear guidance regarding the military portions of the leave and offered suggestions on the appropriate exigencies that should qualify for leave and options for measuring the leave period. 

Kathy Gurchiek is associate editor for HR News. She can be reached at kgurchiek@shrm.org.

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